![handle is hein.journals/emyon70 and id is 1 raw text is: THE DEAD HAND REVISITED
Andrew Coan*
ABSTRACT
Perhaps the oldest and most central question in constitutional theory is what
gives the Constitution its special status as fundamental law. One of the oldest
answers, and the answer many originalists still give today, is that the
Constitution is the command of the sovereign people. Originalism, in its
canonical form, may be seen as a corollary of this view. Yet almost before this
argument was made, it attracted a powerful criticism, most commonly
associated with Thomas Jefferson, who declared: [T]he earth belongs in
usufruct to the living. The dead have neither powers nor rights over it. This is
the famous dead hand problem, which many nonoriginalists have thought
decisive, even unanswerable.
Needless to say, originalists have not been persuaded. Indeed, many
originalists today seem to have forgotten that the dead hand problem requires
any response at all. This essay serves as a reminder, examining the best
responses to the dead hand problem and finding them wanting. In the process,
it clarifies the stakes of the dead hand problem for originalists and
nonoriginalists alike. As the United States confronts a mass movement for racial
justice and a catastrophic pandemic presenting problems never anticipated by
the founders, those stakes have seldom been more pressing.
Professor of Law, University of Arizona. For helpful comments, I thank David Schwartz.](ViewImageLocal?handle=hein.journals/emyon70&div=1&collection=&method=preview&ext=.png&size=3)
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